0347-0420 – Hieronymus – Dialogus Adversus Luciferianos The
Michael J. Green (HI Bar No. 4451) Facsimile: 808-566-0347 ... · Plaintiffs, v. FEDERAL TRANSIT...
Transcript of Michael J. Green (HI Bar No. 4451) Facsimile: 808-566-0347 ... · Plaintiffs, v. FEDERAL TRANSIT...
Michael J. Green (HI Bar No. 4451) 841 Bishop Street, Suite 2201 Honolulu, HI 96813 Telephone: 808-521-3336 Facsimile: 808-566-0347 Email: [email protected] Nicholas C. Yost (CA Bar No. 35297) Matthew G. Adams (CA Bar No. 229021) Admitted pro hac vice SNR Denton US LLP 525 Market Street, 26th Floor San Francisco, CA 94105 Telephone: 415-882-5000 Facsimile: 415-882-0300 Email: [email protected] [email protected]
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
HONOLULUTRAFFIC.COM; CLIFF SLATER; BENJAMIN J. CAYETANO; WALTER HEEN; HAWAII’S THOUSAND FRIENDS; THE SMALL BUSINESS HAWAII ENTREPRENEURIAL EDUCATION FOUNDATION; RANDALL W. ROTH; and DR. MICHAEL UECHI, Plaintiffs, v. FEDERAL TRANSIT ADMINISTRATION; LESLIE ROGERS, in his official capacity
Case No. 11-00307 AWT PLAINTIFFS' OPPOSITION TO DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE [Docket Nos. 37-40]
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as Federal Transit Administration Regional Administrator; PETER M. ROGOFF, in his official capacity as Federal Transit Administration Administrator; UNITED STATES DEPARTMENT OF TRANSPORTATION; RAY LAHOOD, in his official capacity as Secretary of Transportation; THE CITY AND COUNTY OF HONOLULU; WAYNE YOSHIOKA, in his official capacity as Director of the City and County of Honolulu Department of Transportation. Defendants.
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TABLE OF CONTENTS
Page(s)
INTRODUCTION ...................................................................................................1
ARGUMENT ...........................................................................................................1
A. General Objections ..............................................................................1
1. Defendants’ Reliance On “Incorporation By Reference” Is Improper.............................................................1
2. Defendants’ Reliance On Judicial Notice Is Improper....................................................................................3
a) Judicial Notice Of The Veracity Of An Argument Or Conclusion Is Improper............................4
b) Judicial Notice Of Defendants’ Own Interpretation, Characterization, Or Opinion Of Matters Of Public Record Is Improper......................5
B. Specific Objections..............................................................................6
1. Exhibit A: The Honolulu High-Capacity Transit Corridor Project Draft Environmental Impact Statement/Section 4(f) Evaluation (“Draft EIS”). ....................6
2. Exhibit B: The Honolulu High-Capacity Transit Corridor Project Final Environmental Impact Statement/Section 4(f) Evaluation (“Final EIS”). ....................6
3. Exhibit C: Record of Decision (“ROD”). .................................7
4. Exhibit D: O’ahu Regional Transportation Plan 2030 (“ORTP 2030”) and corresponding facts.........................7
5. Exhibit E: Hawai’i State Legislature Act 247 and corresponding facts. ..................................................................8
6. Exhibit F: Honolulu City Council Ordinance 05-027 and corresponding facts. ....................................................9
7. Exhibit G: Certificate of Results From Office of City Clerk, City and County of Honolulu...............................10
8. Exhibit H: Notice of Preparation of an Environmental Impact Statement for the High-Capacity Transit Improvements in the Southern Corridor of Honolulu, HI (“December 2005 NOI”). ..............10
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9. Exhibit I: Comment Form of Plaintiff Dr. Michael Uechi to December 2005 NOI. ...............................................10
10. Exhibit J: Written Comments by Plaintiff HonoluluTraffic.com through its Chair, Plaintiff Cliff Slater submitted with December 2005 NOI. ..................11
11. Asserted “fact”: “The public record is devoid of any comments from Plaintiffs Cliff Slater (in his individual capacity), Benjamin Cayetano, Walter Heen, Hawaii’s Thousand Friends, The Small Business Hawaii Entrepreneurial Education Foundation and Randall Roth in response to the NOI and the alternatives scoping process.” ............................11
12. Exhibit K: Notice of Intent to Prepare an Environmental Impact Statement for High-Capacity Transit Improvements in the Leeward Corridor of Honolulu, HI (“March 2007 NOI”) and corresponding facts. ................................................................12
13. Exhibit L: Comment Letter by Plaintiff HonoluluTraffic.com (through its Chair, Cliff Slater) regarding the March 2007 NOI. ..................................12
14. Exhibit M: Written Comments by Plaintiff HonoluluTraffic.com (through its Chair, Cliff Slater) regarding the March 2007 NOI. ..................................13
15. Asserted “fact”: “The public record is devoid of any comments from Plaintiffs Cliff Slater (in his individual capacity), Benjamin Cayetano, Walter Heen, Hawaii’s Thousand Friends, The Small Business Hawaii Entrepreneurial Education Foundation and Randall Roth and Dr. Michael Uechi in response to the NOI.” ...............................................13
16. Exhibit N: November 21, 2008 Notice of Availability of the Draft EIS and subsequent Amended Notices of December 12, 2008 and December 19, 2008. ................................................................14
17. Exhibit O: Notice of public hearings published in the Honolulu Star-Bulletin newspaper on November 21, 2008 and corresponding facts. ........................15
18. Asserted “fact”: “The FTA and the City also conducted extensive public outreach program to inform the public of the Project’s environmental impacts and to solicit public comments on the Draft EIS.” ..............................................................................15
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19. Exhibit P: Written Comments to the Draft EIS by Plaintiff HonoluluTraffic.com (through its Chair, Cliff Slater). ............................................................................16
20. Exhibit Q: Comment Letter to the Draft EIS by Plaintiff Hawaii’s Thousand Friends dated February 2, 2009. ....................................................................16
21. Exhibit R: Oral Comments (transcribed by court reporter) by Plaintiff Dr. Michael Uechi regarding the Draft EIS. ..........................................................................16
22. Exhibit S: Comment Letter to the Draft EIS by Plaintiff Dr. Michael Uechi dated February 6, 2009.........................................................................................17
23. Asserted “fact”: “The public record is devoid of any comments from Plaintiffs Cliff Slater (in his individual capacity), Benjamin Cayetano, Walter Heen, the Small Business Hawaii Entrepreneurial Education Foundation, and Randall on the Draft EIS.” ........................................................................................17
24. Exhibit T: Notice of Availability of Final EIS and subsequent Amended Notice of July 23, 2010 and corresponding facts. ................................................................18
25. Exhibit U: Oral testimony of Plaintiff Cliff Slater regarding the Final EIS. ..........................................................18
26. Exhibit V: Written Comments to the Final EIS by Plaintiff HonoluluTraffic.com (through its Chair, Cliff Slater) dated August 16, 2010. .......................................19
27. Exhibit W: Written Comments to the Final EIS by Plaintiff Hawaii’s Thousand Friends (through is Executive Director, Donna Wong). ........................................19
28. Asserted “fact”: “The public record is devoid of any comments from Plaintiffs Benjamin Cayetano, Walter Heen, the Small Business Hawaii Entrepreneurial Education Foundation, Randall Roth, and Dr. Michael Uechi on the Final EIS.” ...................19
CONCLUSION......................................................................................................21
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TABLE OF AUTHORITIES
Page(s) FEDERAL CASES
Coto Settlement v. Eisenberg 593 F.3d 1031 (9th Cir. 2010) ..............................................................................3
Great Basin Mine Watch v. Hankins 456 F.3d 955 (9th Cir. 2006) ................................................................................3
‘Ilio’ulaokalani Coalition v. Rumsfeld 464 F.3d 1083 (9th Cir. 2006) ..............................................................................3
J.W. v. Fresno Unified Sch. Dist. 626 F.3d 431 (9th Cir. 2010) .......................................................................passim
Lawrence v. Commodity Futures Trading Com. 759 F.2d 767 (9th Cir. 1985) .......................................................................passim
Lee v. City of Los Angeles 250 F.3d 668 (9th Cir. 2001) .......................................................................passim
Swartz v. KPMG LLP 476 F.3d 756 (9th Cir. 2007) .......................................................................passim
United States v. S. Cal. Edison Co. 300 F. Supp. 2d 964 (E.D. Cal. 2004) .........................................................passim
Valdivia v. Schwarzenegger 599 F.3d 984 (9th Cir. 2010) ................................................................................4
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INTRODUCTION
As a general rule, the scope of judicial review on a motion for
judgment on the pleadings is limited to the contents of the Complaint.
Defendants have nonetheless filed a Motion for Judgment on the
Pleadings (“Def. Motion” or “Motion”) based entirely on documents
other than Plaintiffs’ Complaint. Defendants claim that their reliance
on such evidence is appropriate because the evidence is subject to
judicial notice. They have filed a Request for Judicial Notice
(“RFJN”) to that effect.
But Defendants are not really seeking judicial notice. Instead,
they are asking the Court to accept their own characterizations of the
evidence of Plaintiffs’ participation in the Honolulu High-Capacity
Transit Corridor Project (the “Project”). These characterizations
hardly constitute “facts,” much less ones subject to judicial notice.
For these reasons and those more fully discussed below, this Court
should deny Defendants’ RFJN to the extent it does not comply with
Rule 201 of the Federal Rules of Evidence.
ARGUMENT
A. General Objections
1. Defendants’ Reliance On “Incorporation By Reference” Is Improper
Defendants claim that the Final Environmental Impact
Statement (the “FEIS”) for the Honolulu High-Capacity Transit
Corridor Project (the “Project”), the Draft Environmental Impact
Statement (the “DEIS”) for the Project, and the Record of Decision
(“ROD”) for the Project have been “incorporated by reference” into
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Plaintiffs’ Complaint and therefore can be considered by the Court in
their entirety. See Def. Motion at 18-19; RFJN at 2-4.
As an initial matter, Plaintiffs note that Defendants’ RFJN does
not appear to be the right place for arguments on the subject of
incorporation by reference. Nevertheless, because Defendants argue
incorporation by reference in their RFJN, Plaintiffs will briefly
address the issue here.
Plaintiffs do not dispute that, as a general matter, material
incorporated by reference into a complaint can be considered in the
context of a motion for judgment on the pleadings. Nor do Plaintiffs
dispute that their Complaint incorporates by reference small portions
of the 5,000-plus page Draft EIS and the still-lengthier Final EIS
(together, the “EISs”). See, e.g., Complaint at ¶¶ 23-31, 89-93.
But Defendants’ reliance on the incorporation by reference
doctrine is nonetheless improper. First of all, Defendants never
served their Exhibit A (the Draft EIS) or their Exhibit B (the Final
EIS) on Plaintiffs. See Declaration of Matthew Adams (“Adams
Dec.”) at ¶ 2. Plaintiffs have independent access to electronic
versions of both EISs. Id. at ¶ 3. But they have no access to the
“original color hard bound version[s]” of the documents that were
(apparently) provided to the Court. Id. Nor do Plaintiffs have access
to the “accompanying DVD, and additional CD” Defendants lodged
with the Court. Id. Therefore, Plaintiffs cannot fully evaluate
Defendants’ citations to those materials. For reasons of fundamental
fairness, Defendants should not be allowed to rely on any portion of
their Exhibit A or Exhibit B.
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Second, incorporation by reference is not an appropriate means
of establishing an “absence of evidence” where, as here, the parties’
contentions must be resolved on the basis of an entire administrative
record. Defendants contend that Plaintiffs failed to exhaust their
administrative remedies. Def. Motion at 19-34. The extent to which a
party has exhausted its administrative remedies — like other NEPA,
NHPA, and Section 4(f) issues — is determined on the basis of the
administrative record as a whole. See, e.g., Great Basin Mine Watch
v. Hankins, 456 F. 3d 955, 968 (9th Cir. 2006) (“our review of the
record indicates that Great Basin adequately raised the issue”);
‘Ilio’ulaokalani Coalition v. Rumsfeld, 464 F.3d 1083, 1092-93 (9th
Cir. 2006) (relying on administrative record to evaluate waiver and
exhaustion issues). But incorporation by reference only allows courts
to consider specific documents; by definition, it does not permit
consideration of an entire administrative record. See Coto Settlement
v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010) (describing
incorporation doctrine). For this reason, too, Defendants’ reliance on
the incorporation by reference doctrine is improper.
2. Defendants’ Reliance On Judicial Notice Is Improper.
Defendants assert that their Exhibits A through W, as well as
their assertions about the documents contained in those exhibits, are
“matters of public record, capable of accurate and ready determination
and not subject to reasonable dispute,” and therefore subject to
judicial notice (RFJN at p.4). They are mistaken.
Federal Rules of Evidence Rule 201 provides that judicial
notice is proper where the “adjudicative fact” is “one not subject to
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reasonable dispute in that it is either (1) generally known within the
territorial jurisdiction of the trial court or (2) capable of accurate and
ready determination by resort to sources whose accuracy cannot be
reasonably questioned.” Fed. R. Evid. 201(b). Rule 201 only applies
to “adjudicative facts,” defined as “those to which the law is applied
in the process of adjudication.” Valdivia v. Schwarzenegger, 599 F.3d
984, 994 (9th Cir. 2010) (citing Fed. R. Evid. 201, Notes to
Subdivision (a).) Because judicial notice “proceeds upon the theory
that these considerations call for dispensing with the traditional
methods of proof only in clear cases …the tradition has been one of
caution.” Fed. R. Evid. 201(a), Notes to Subdivision (a).
a) Judicial Notice Of The Veracity Of An Argument Or Conclusion Is Improper.
Judicial notice is an appropriate mechanism for introducing
evidence of the existence of a fact or document. It cannot be used to
introduce evidence of the veracity of an argument or conclusion based
on a fact. As the Ninth Circuit has explained, “[a]lthough the
existence of a document may be judicially noticeable, the truth of
statements contained in the document and improper interpretation are
not subject to judicial notice if those matters are reasonably
disputable.” J. W. v. Fresno Unified Sch. Dist., 626 F.3d 431, 440
(9th Cir. 2010) (internal citations omitted); see also Lee v. City of Los
Angeles, 250 F. 3d 668, 690 (9th Cir. 2001) (denying request for
judicial notice and noting that when taking judicial notice, courts may
do so “not for the truth of the facts recited therein, but for the
existence” of the document, “which is not subject to reasonable
dispute over its veracity.”) Here, Defendants improperly request that
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the Court consider not only the existence of certain documents, but
also the veracity of propositions for which Defendants believe those
documents stand.
b) Judicial Notice Of Defendants’ Own Interpretation, Characterization, Or Opinion Of Matters Of Public Record Is Improper.
Defendants’ RFJN should also be denied as to Defendants’
interpretations or characterization of various factual and legal aspects
of this case. Defendants misleadingly present those matters as “facts.”
But they are entirely unsuitable for judicial notice. A party's
“characterization of [documents outside the pleadings] is subject to
reasonable dispute and is therefore not properly noticed.” Swartz v.
KPMG LLP, 476 F.3d 756, 758, n.3 (9th Cir. 2007); see also J. W. v.
Fresno Unified Sch. Dist., 626 F.3d at 440 (party’s “improper
interpretation [is] not subject to judicial notice”); United States v. S.
Cal. Edison Co., 300 F. Supp. 2d 964, 974 (E.D. Cal. 2004)
reconsidered on other grounds 2005 US Dist LEXIS 24592 (E.D. Cal.
2005) (“A court may not take judicial notice of one party's opinion of
how a matter of public record should be interpreted.”). Speculative
facts are equally unsuitable for judicial notice. See Lawrence v.
Commodity Futures Trading Com., 759 F.2d 767, 776, n.13 (9th Cir.
1985) (denying judicial notice) (“[S]peculation is not appropriate
matter for judicial notice.”); Lee v. City of Los Angeles, 250 F. 3d 668,
690 (9th Cir. 2001). The Court should decline to take judicial notice
of Defendants’ interpretations and opinions.
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These grounds form the basis of Plaintiffs’ objection to
Defendants’ reliance on evidence beyond the Complaint. Plaintiffs
specifically address each of Defendants’ requests below.
B. Specific Objections
1. Exhibit A: The Honolulu High-Capacity Transit Corridor Project Draft Environmental Impact Statement/Section 4(f) Evaluation (“Draft EIS”).
Defendants submit the Draft EIS for judicial notice on the basis
that it is a public record. (RFJN, ¶ 1.) Through their Motion though,
it is clear that Defendants are really seeking judicial notice not simply
of the existence of this document but also of the truth of the facts
(they claim are) contained therein. See e.g., Motion at pp. 8-10, 25-
26, 28, 31-32. Doing so is improper under Federal Rules of Evidence.
Fed. R. Evid. 201 (b); J. W. v. Fresno Unified Sch. Dist., 626 F.3d at
440. Plaintiffs object to Defendants’ request for judicial notice of
Exhibit A in that the request seeks notice of the veracity of arguments
based on the Draft EIS.
2. Exhibit B: The Honolulu High-Capacity Transit Corridor Project Final Environmental Impact Statement/Section 4(f) Evaluation (“Final EIS”).
Defendants submit the Final EIS for judicial notice on the basis
that it is a public record. (RFJN, ¶ 2.) Through their Motion though,
it is clear that Defendants are really seeking judicial notice not simply
of the existence of this document but also of the truth of the facts
(they claim are) contained therein. See e.g., Motion at pp. 8-10, 25-
26, 28, 31-32. Doing so is improper under Federal Rules of Evidence.
Fed. R. Evid. 201 (b); J. W. v. Fresno Unified Sch. Dist., 626 F.3d at
440. Plaintiffs object to Defendants’ request for judicial notice of
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Exhibit B in that the request seeks notice of the veracity of arguments
based on the Final EIS.
3. Exhibit C: Record of Decision (“ROD”).
Defendants submit the ROD for judicial notice on the basis that
it is a public record. (RFJN, ¶ 2.) Through Defendants’ Motion
though, it is clear that Defendants are really seeking judicial notice not
simply of the existence of this document but also of the truth of the
facts contained therein. (See, e.g., Motion at 27-28, 31-32.) Doing so
is improper under Federal Rules of Evidence. See Fed. R. Evid. 201
(b); J. W. v. Fresno Unified Sch. Dist., 626 F.3d at 440. Plaintiffs
object to Defendants’ request for judicial notice of Exhibit C in that
the request seeks notice of the veracity of arguments based on the
ROD.
4. Exhibit D: O’ahu Regional Transportation Plan 2030 (“ORTP 2030”) and corresponding facts.
Defendants seek judicial notice of Exhibit D as well as the
following “facts” concerning this document:
• “Pursuant to the Federal-Aid Highway Act of 1973, the Urban Mass Transportation Act of 1964 and Hawai’i Revised States Chapter
279E, the O’ahu Metropolitan Planning Organization (“O’ahu
MPO”) was established to act as an advisory urban transportation
planning organization for the island of O’ahu and to coordinate
continuing, comprehensive, transportation planning.” (RFJN, ¶ 4)
(citing Haw. Rev. Stat. §§ 279E-1, -2.)
• “The O’ahu MPO is responsible for, inter alia, producing the O’ahu Regional Transportation Plan (“ORTP”), which “communicates the
long-range vision and transportation goals, objectives and policies
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for O’ahu.” (RFJN, ¶ 4) (citing
http://www.oahumpo.org.programs/ortp.html.)
• “In or about April 2006, the Policy Committee of the O’ahu MPO (comprised of five members from the City Council, Three Senators,
three State Representatives, the Director of the State Department of
Transportation and the Director of the City Department of
Transportation Services) approved the O’ahu Regional
Transportation Plan 2030 (“ORTP 2030”), and then modified it
through Amendment #1 in May 2007.” (RFJN, ¶ 4).)
Plaintiffs first object to this Court taking judicial notice of these
matters because they do not constitute “adjudicative facts” under Rule
201(a). Fed. R. Evid. 201(a) and Notes to Subdivision (a). Second,
Plaintiffs object on the basis that Defendants are improperly seeking
judicial notice not of the existence of certain documents, but instead
of the truth of the matter asserted therein. Doing so is improper under
Federal Rules of Evidence. Fed. R. Evid. 201 (b); J. W. v. Fresno
Unified Sch. Dist., 626 F.3d at 440.
5. Exhibit E: Hawai’i State Legislature Act 247 and corresponding facts.
Defendants submit Exhibit E for judicial notice along with the
following “fact”: “In 2005, the Hawai’i State Legislature passed Act
247, authorizing the City to levy an excise and use tax surcharge to
construct and operate a mass transit system serving O’ahu.” (RFJN,
¶5.)
Plaintiffs first object to this Court taking judicial notice of this
matter because it does not constitute an “adjudicative fact” under Rule
201(a). Fed. R. Evid. 201(a) and Notes to Subdivision (a). Second,
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Plaintiffs object on the basis that Defendants are improperly seeking
judicial notice not of the existence of Act 247, but rather of their
interpretation of Act 247 (an interpretation disputed by Plaintiffs).
Doing so is improper under Federal Rules of Evidence. Fed. R. Evid.
201 (b); J. W. v. Fresno Unified Sch. Dist., 626 F.3d at 440.
6. Exhibit F: Honolulu City Council Ordinance 05-027 and corresponding facts.
Defendants submit Exhibit F for judicial notice along with the
fact: “On or about August 10, 2005, the Honolulu City Council
adopted Ordinance 05-027 to levy a tax surcharge to fund the
Project.” RFJN, ¶6.
Plaintiffs first object to this Court taking judicial notice of this
fact because it does not constitute an “adjudicative fact” under Rule
201(a). Fed. R. Evid. 201(a) and Notes to Subdivision (a). Second,
Plaintiffs object on the basis that Defendants are improperly seeking
judicial notice not of the existence of certain documents, but instead
of the truth of their own interpretation of a matter of public record.
Doing so is improper under Federal Rules of Evidence. Fed. R. Evid.
201 (b); J. W. v. Fresno Unified Sch. Dist., 626 F.3d at 440. Indeed,
Defendants grossly misrepresent the contents of the Ordinance.
Ordinance 05-027 did not state that it was adopted to fund “the
Project,” nor does it specifically address any such project. Ordinance
05-027 merely establishes an excise and use tax “to be used for the
purposes of funding the operating and capital costs of public
transportation” and mandated that the funds be used for “a mass
transit project.” (RFJN, Ex. F-1, F-2.) Thus, this ordinance refers to
any new mass transit project, not specifically “the Project”, as
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Defendants assert and request this Court to notice. This Court cannot
take judicial notice of Defendants’ mischaracterization of the public
record. See Swartz 476 F.3d at 758, n.3; J. W. v. Fresno Unified Sch.
Dist., 626 F.3d at 440 (party’s “improper interpretation [is] not subject
to judicial notice”).
7. Exhibit G: Certificate of Results From Office of City Clerk, City and County of Honolulu.
Defendants submit Exhibit G for judicial notice. (RFJN ¶ 7.)
Plaintiffs do not object to the request, so long as judicial notice
extends only to the existence of the document and not to Defendants’
interpretation of the document. Fed. R. Evid. 201 (b); J. W. v. Fresno
Unified Sch. Dist., 626 F.3d at 440.
8. Exhibit H: Notice of Preparation of an Environmental Impact Statement for the High-Capacity Transit Improvements in the Southern Corridor of Honolulu, HI (“December 2005 NOI”).
Defendants submit Exhibit H for judicial notice. Plaintiffs do
not object to the request, so long as judicial notice extends only to the
existence of the document and not to Defendants’ interpretation of the
document. Fed. R. Evid. 201 (b); J. W. v. Fresno Unified Sch. Dist.,
626 F.3d at 440.
9. Exhibit I: Comment Form of Plaintiff Dr. Michael Uechi to December 2005 NOI.
Defendants submit Exhibit I for judicial notice on the basis that,
because it is included in a matter of public record, it itself is also a
matter of public record. RFJN, ¶ 9. Plaintiffs do not object to the
request, so long as judicial notice extends only to the existence of the
document and not to Defendants’ interpretation of the document. Fed.
R. Evid. 201 (b); J. W. v. Fresno Unified Sch. Dist., 626 F.3d at 440.
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10. Exhibit J: Written Comments by Plaintiff HonoluluTraffic.com through its Chair, Plaintiff Cliff Slater submitted with December 2005 NOI.
Defendants submit Exhibit J for judicial notice on the basis that,
because it is included in a matter of public record, it itself is also a
matter of public record. RFJN, ¶ 10. Plaintiffs do not object to the
request, so long as judicial notice extends only to the existence of the
document and not to Defendants’ interpretation of the document. Fed.
R. Evid. 201 (b); J. W. v. Fresno Unified Sch. Dist., 626 F.3d at 440.
11. Asserted “fact”: “The public record is devoid of any comments from Plaintiffs Cliff Slater (in his individual capacity), Benjamin Cayetano, Walter Heen, Hawaii’s Thousand Friends, The Small Business Hawaii Entrepreneurial Education Foundation and Randall Roth in response to the NOI and the alternatives scoping process.”
Defendants request this Court take judicial notice of this “fact.”
RFJN, ¶ 11. Defendants cite to no legal support which advances the
proposition that courts can embark on this sort of speculative
deductive reasoning to judicially notice the absence of facts.
Plaintiffs are also aware of no case law which deems a conclusion
based on deductive reasoning is a judicially noticeable “adjudicative
fact” nor any which allows a court to take judicial notice of the
absence of a fact. Fed. R. Civ. Proc. 201. Moreover, Plaintiffs object
that this “fact” simply represents Defendants’ interpretation and
speculations regarding alleged matters of public record and, as such, is
wholly improper for judicial notice. See Swartz, 476 F.3d at 758, n.3
(A party's “characterization of [documents outside the pleadings] are
subject to reasonable dispute and are therefore not properly noticed.”);
see also, J. W. v. Fresno Unified Sch. Dist., 626 F.3d at 440 (party’s
“improper interpretation [is] not subject to judicial notice”); S. Cal.
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Edison Co., 300 F. Supp. 2d at 974 (“A court may not take judicial
notice of one party's opinion of how a matter of public record should
be interpreted.”); Lawrence, 759 F.2d at 776, n.13 (“[S]peculation is
not appropriate matter for judicial notice.”); Lee, 250 F. 3d at 690.
12. Exhibit K: Notice of Intent to Prepare an Environmental Impact Statement for High-Capacity Transit Improvements in the Leeward Corridor of Honolulu, HI (“March 2007 NOI”) and corresponding facts.
Defendants submit Exhibit K for judicial notice along with the
fact: “This notice informed the public that, inter alia, the FTA and
City intended to prepare an environmental impact statement for a
proposed fixed-guideway system and called for “public and
interagency input on the purpose and needs to be addressed by the
project, the alternatives to be considered in the EIS, and the
environmental and community impacts to be evaluated” through
attendance at two scoping meetings or submission of written
comments.” RFJN, ¶ 12.
Plaintiffs object on the basis that Defendants are improperly
seeking judicial notice not of the existence of certain documents, but
rather of the truth of their own interpretation of a matter of public
record. Thus, this “fact” is subject to a reasonable dispute and judicial
notice is improper under Federal Rules of Evidence. Fed. R. Evid.
201 (b); J. W. v. Fresno Unified Sch. Dist., 626 F.3d at 440.
13. Exhibit L: Comment Letter by Plaintiff HonoluluTraffic.com (through its Chair, Cliff Slater) regarding the March 2007 NOI.
Defendants submit Exhibit L for judicial notice on the basis
that, because it is included in a matter of public record, it itself is also
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a matter of public record. RFJN, ¶13. Defendants can not and do not
cite to any legal support for the assertion that individual comments to
the NOI’s are “capable of accurate and ready determination by resort
to sources whose accuracy cannot be reasonably questioned.” Fed. R.
Evid. 201. Indeed the very subject matter of such documents -- an
individual’s personal opinions and viewpoints concerning a certain
topic -- are inherently subject to a reasonably dispute. Thus, to the
extent Defendants seek judicial notice of the contents of these
comments or Defendant’s own legal interpretation of these comments,
it is improper and should be denied.
14. Exhibit M: Written Comments by Plaintiff HonoluluTraffic.com (through its Chair, Cliff Slater) regarding the March 2007 NOI.
Defendants submit Exhibit M for judicial notice on the basis
that, because it is included in a matter of public record, it is itself also
a matter of public records. RFJN, ¶ 14. Plaintiffs do not object to the
request, so long as judicial notice extends only to the existence of the
document and not to Defendants’ interpretation of the document. Fed.
R. Evid. 201 (b); J. W. v. Fresno Unified Sch. Dist., 626 F.3d at 440.
15. Asserted “fact”: “The public record is devoid of any comments from Plaintiffs Cliff Slater (in his individual capacity), Benjamin Cayetano, Walter Heen, Hawaii’s Thousand Friends, The Small Business Hawaii Entrepreneurial Education Foundation and Randall Roth and Dr. Michael Uechi in response to the NOI.”
Defendants request this Court take judicial notice of this “fact.”
RFJN, ¶ 15. Defendants cite to no legal support which advances the
proposition that courts can embark on this sort of speculative
deductive reasoning to judicially notice the absence of facts.
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Plaintiffs are also aware of no case law which deems a conclusion
based on deductive reasoning is a judicially noticeable “adjudicative
fact” nor any which allows a court to take judicial notice of the
absence of a fact. Fed. R. Civ. Proc. 201. Moreover, Plaintiffs object
that this “fact” simply represents Defendants’ interpretation and
characterization of alleged matters of public record and, as such, is
wholly improper for judicial notice. See Swartz, 476 F.3d at 758, n.3
(A party's “characterization of [documents outside the pleadings] are
subject to reasonable dispute and are therefore not properly noticed.”);
see also, J. W. v. Fresno Unified Sch. Dist., 626 F.3d at 440 (party’s
“improper interpretation [is] not subject to judicial notice”); S. Cal.
Edison Co., 300 F. Supp. 2d at 974 (“A court may not take judicial
notice of one party's opinion of how a matter of public record should
be interpreted.”); Lawrence, 759 F.2d at 776, n.13 (“[S]peculation is
not appropriate matter for judicial notice.”); Lee, 250 F. 3d at 690.
16. Exhibit N: November 21, 2008 Notice of Availability of the Draft EIS and subsequent Amended Notices of December 12, 2008 and December 19, 2008.
Defendants submit Exhibit N for judicial notice along with the
“fact” asserting that the “Amended Notice informed the public that the
comment period was extended to February 6, 2009.” RFJN, ¶ 16.
Plaintiffs do not object to the request, so long as judicial notice
extends only to the existence of the document and not to Defendants’
interpretation of the document. Fed. R. Evid. 201 (b); J. W. v. Fresno
Unified Sch. Dist., 626 F.3d at 440.
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17. Exhibit O: Notice of public hearings published in the Honolulu Star-Bulletin newspaper on November 21, 2008 and corresponding facts.
Defendants submit Exhibit O for judicial notice along with the
following “fact”: “The FTA and the City conducted five noticed
public hearings on the Draft EIS in December 2008.” (RFJN, ¶ 17.)
Plaintiffs do not object to the request, so long as judicial notice
extends only to the existence of the document and not to Defendants’
interpretation of the document. Fed. R. Evid. 201 (b); J. W. v. Fresno
Unified Sch. Dist., 626 F.3d at 440.
18. Asserted “fact”: “The FTA and the City also conducted extensive public outreach program to inform the public of the Project’s environmental impacts and to solicit public comments on the Draft EIS.”
Defendants request this Court take judicial notice of this “fact.”
RFJN ¶ 18. Plaintiffs object that this “fact” simply represents
Defendants’ characterization (for example, note defendants’ use of the
term “extensive”) regarding alleged matters of public record and, as
such, is wholly improper for judicial notice. See Swartz, 476 F.3d at
758, n.3 (A party's “characterization of [documents outside the
pleadings] are subject to reasonable dispute and are therefore not
properly noticed.”); see also J. W. v. Fresno Unified Sch. Dist., 626
F.3d at 440 (party’s “improper interpretation [is] not subject to
judicial notice”); S. Cal. Edison Co., 300 F. Supp. 2d at 974 (“A court
may not take judicial notice of one party's opinion of how a matter of
public record should be interpreted.”); Lawrence, 759 F.2d at 776,
n.13 (“[S]peculation is not appropriate matter for judicial notice.”);
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Lee, 250 F. 3d at 690. Accordingly, Plaintiffs object to this court
taking judicial notice of Defendants’ conclusory “fact.”
19. Exhibit P: Written Comments to the Draft EIS by Plaintiff HonoluluTraffic.com (through its Chair, Cliff Slater).
Defendants submit Exhibit P for judicial notice on the basis
that, because it is included in a matter of public record, it itself is also
a matter of public record. RFJN, ¶19. Plaintiffs do not object to the
request, so long as judicial notice extends only to the existence of the
document and not to Defendants’ interpretation of the document. Fed.
R. Evid. 201 (b); J. W. v. Fresno Unified Sch. Dist., 626 F.3d at 440.
20. Exhibit Q: Comment Letter to the Draft EIS by Plaintiff Hawaii’s Thousand Friends dated February 2, 2009.
Defendants submit Exhibit Q for judicial notice on the basis
that, because it is included in a matter of public record, it itself is also
a matter of public record. RFJN, ¶ 20. Plaintiffs do not object to the
request, so long as judicial notice extends only to the existence of the
document and not to Defendants’ interpretation of the document. Fed.
R. Evid. 201 (b); J. W. v. Fresno Unified Sch. Dist., 626 F.3d at 440..
21. Exhibit R: Oral Comments (transcribed by court reporter) by Plaintiff Dr. Michael Uechi regarding the Draft EIS.
Defendants submit Exhibit R for judicial notice on the basis
that, because it is included in a matter of public record, it itself is also
a matter of public record. RFJN, ¶ 21. Plaintiffs do not object to the
request, so long as judicial notice extends only to the existence of the
document and not to Defendants’ interpretation of the document. Fed.
R. Evid. 201 (b); J. W. v. Fresno Unified Sch. Dist., 626 F.3d at 440.
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22. Exhibit S: Comment Letter to the Draft EIS by Plaintiff Dr. Michael Uechi dated February 6, 2009.
Defendants submit Exhibit S for judicial notice on the basis
that, because it is included in a matter of public record, it itself is also
a matter of public record. RFJN, ¶ 22. Plaintiffs do not object to the
request, so long as judicial notice extends only to the existence of the
document and not to Defendants’ interpretation of the document. Fed.
R. Evid. 201 (b); J. W. v. Fresno Unified Sch. Dist., 626 F.3d at 440.
23. Asserted “fact”: “The public record is devoid of any comments from Plaintiffs Cliff Slater (in his individual capacity), Benjamin Cayetano, Walter Heen, the Small Business Hawaii Entrepreneurial Education Foundation, and Randall on the Draft EIS.”
Defendants request this Court take judicial notice of this “fact.”
RFJN ¶ 23. Defendants cite to no legal support which advances the
proposition that courts can embark on this sort of speculative
deductive reasoning to judicially notice the absence of facts.
Plaintiffs are also aware of no case law which deems a conclusion
based on deductive reasoning is a judicially noticeable “adjudicative
fact” nor any which allows a court to take judicial notice of the
absence of a fact. Fed. R. Civ. Proc. 201. Moreover, Plaintiffs object
that this “fact” simply represents Defendants’ interpretation and
characterization of alleged matters of public record and, as such, is
wholly improper for judicial notice. See Swartz, 476 F.3d at 758, n.3
(A party's “characterization of [documents outside the pleadings] are
subject to reasonable dispute and are therefore not properly noticed.”);
see also J. W. v. Fresno Unified Sch. Dist., 626 F.3d at 440 (party’s
“improper interpretation [is] not subject to judicial notice”); S. Cal.
Edison Co., 300 F. Supp. 2d at 974 (“A court may not take judicial
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notice of one party's opinion of how a matter of public record should
be interpreted.”); Lawrence, 759 F.2d at 776, n.13 (“[S]peculation is
not appropriate matter for judicial notice.”); Lee, 250 F. 3d at 690.
24. Exhibit T: Notice of Availability of Final EIS and subsequent Amended Notice of July 23, 2010 and corresponding facts.
Defendants submit Exhibit T for judicial notice along with the
following “fact”: “This notice informed the public of the 30-day
comment period (ending July 26, 2010) for the Final EIS.” (RFJN, ¶
24.)
Plaintiffs object on the basis that Defendants are improperly
seeking judicial notice not of the existence of certain documents, but
rather of their characterization of a matter of public record. Thus, this
“fact” is subject to a reasonable dispute and judicial notice is improper
under Federal Rules of Evidence. Fed. R. Evid. 201 (b); J. W. v.
Fresno Unified Sch. Dist., 626 F.3d at 440. This Court may not take
judicial notice of the truth of whether the notice did inform the public
of a comment period. See Fed. R. Evid. 201(b); J. W. v. Fresno
Unified Sch. Dist., 626 F.3d at 440; Lee, 250 F. 3d at 690. Doing so
would be a factual determination beyond the scope of judicial notice.
Id.
25. Exhibit U: Oral testimony of Plaintiff Cliff Slater regarding the Final EIS.
Defendants submit Exhibit U for judicial notice on the basis
that, because it is included in a matter of public record, it itself is also
a matter of public record. RFJN, ¶ 25. Plaintiffs do not object to the
request, so long as judicial notice extends only to the existence of the
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document and not to Defendants’ interpretation of the document. Fed.
R. Evid. 201 (b); J. W. v. Fresno Unified Sch. Dist., 626 F.3d at 440.
26. Exhibit V: Written Comments to the Final EIS by Plaintiff HonoluluTraffic.com (through its Chair, Cliff Slater) dated August 16, 2010.
Defendants submit Exhibit V for judicial notice on the basis
that, because it is included in a matter of public record, it itself is also
a matter of public record. RFJN, ¶ 26. Plaintiffs do not object to the
request, so long as judicial notice extends only to the existence of the
document and not to Defendants’ interpretation of the document. Fed.
R. Evid. 201 (b); J. W. v. Fresno Unified Sch. Dist., 626 F.3d at 440.
27. Exhibit W: Written Comments to the Final EIS by Plaintiff Hawaii’s Thousand Friends (through is Executive Director, Donna Wong).
Defendants submit Exhibit W for judicial notice on the basis
that, because it is included in a matter of public record, it itself is also
a matter of public record. RFJN, ¶ 27. Plaintiffs do not object to the
request, so long as judicial notice extends only to the existence of the
document and not to Defendants’ interpretation of the document. Fed.
R. Evid. 201 (b); J. W. v. Fresno Unified Sch. Dist., 626 F.3d at 440.
28. Asserted “fact”: “The public record is devoid of any comments from Plaintiffs Benjamin Cayetano, Walter Heen, the Small Business Hawaii Entrepreneurial Education Foundation, Randall Roth, and Dr. Michael Uechi on the Final EIS.”
Defendants request this Court take judicial notice of this “fact.”
RFJN ¶ 28. Defendants cite to no legal support which advances the
proposition that courts can embark on this sort of speculative
deductive reasoning to judicially notice the absence of facts.
Plaintiffs are also aware of no case law which deems a conclusion
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based on deductive reasoning is a judicially noticeable “adjudicative
fact” nor any which allows a court to take judicial notice of the
absence of a fact. Fed. R. Civ. Proc. 201. Moreover, Plaintiffs object
that this “fact” simply represents Defendants’ interpretation and
characterization of alleged matters of public record and, as such, is
wholly improper for judicial notice. See Swartz, 476 F.3d at 758, n.3
(A party's “characterization of [documents outside the pleadings] are
subject to reasonable dispute and are therefore not properly noticed.”);
see also J. W. v. Fresno Unified Sch. Dist., 626 F.3d at 440 (party’s
“improper interpretation [is] not subject to judicial notice”); S. Cal.
Edison Co., 300 F. Supp. 2d at 974 (“A court may not take judicial
notice of one party's opinion of how a matter of public record should
be interpreted.”); Lawrence, 759 F.2d at 776, n.13 (“[S]peculation is
not appropriate matter for judicial notice.”); Lee, 250 F. 3d at 690.
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- 21 -
CONCLUSION
For the foregoing reasons, Plaintiffs request that this Court
deny Defendants’ Request For Judicial Notice to the extent it does not
comply with Federal Rules of Evidence Rule 201.
Dated: September 26, 2011
Respectfully submitted,
/s/ Michael J. Green Michael J. Green (HI Bar No. 4451) Attorneys for Plaintiffs HonoluluTraffic.com, Cliff Slater, Benjamin J. Cayetano, Walter Heen, Hawaii’s Thousand Friends, The Small Business Hawaii Entrepreneurial Education Foundation, Randall W. Roth, and Dr. Michael Uechi.
/s/ Nicholas C. Yost Nicholas C. Yost (CA Bar No. 35297) Matthew G. Adams (CA Bar No. 229021) SNR Denton US LLP 525 Market Street, 26th Floor San Francisco, CA 94105-2708 Telephone: (415) 882-5000 Facsimile: (415) 882-0300 Attorneys for Plaintiffs HonoluluTraffic.com Cliff Slater, Benjamin J. Cayetano, Walter Heen, Hawaii’s Thousand Friends, The Small Business Hawaii Entrepreneurial Education Foundation, Randall W. Roth, and Dr. Michael Uechi.
Case 1:11-cv-00307-AWT Document 42 Filed 09/26/11 Page 27 of 28 PageID #: 1045
CERTIFICATE OF SERVICE
I certify that on September 26, 2011, I electronically filed the
above document with the Clerk of the District Court using its
CM/ECF system, which will send notice of electronic filing to the
following:
Peter Whitfield Ignacia Moreno Attorneys for Defendants Federal Transit Administration, et al.
John P. Manaut Robert D. Thornton Edward V.A. Kussy Lindsay N. McAnneeley Robert C. Godbey Don S. Kitaoka Gary Y. Takeuchi Attorneys for Defendants City and County of Honolulu, et al.
/s/ Kimberly J. Soto Kimberly J. Soto
27375627\V-1
Case 1:11-cv-00307-AWT Document 42 Filed 09/26/11 Page 28 of 28 PageID #: 1046